06-004499BID Phil`s Expert Tree Service vs. Broward County School Board Status: Closed Recommended Order on Monday, March 19, 2007.

Summary: Respondent`s decision to award a contract for tree trimming services to a corporation lacking five years` experience was erroneous or contrary to competition; both bids, the contract recipient and protester were nonresponsive. Each should be rejected.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHIL'S EXPERT TREE SERVICE, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 06 - 4499BID

)

BROWARD COUNTY SCHOOL BOARD, )

)

Respondent, )

)

and )

)

INNOVATIVE ENVIRONMENTAL )

SERVICES, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing on January 4, 2007, in Fort

Lauderdale, Florida.

APPEARANCES

For Petitioner: Robert Fr anklin, Esquire

Robert S. Franklin, P.A.

515 North Flagler Drive, Suite 801

West Palm Beach, Florida 33401

For Respondent: Robert Paul Vignola, Esquire

School Board of Broward County

K. C. Wright Administrative Building

600 Southeast Third Avenue, 11th Floor

Fort Lauderdale, Florida 33301

For Intervenor: William G. Salim, Jr., Esquire

Moskowitz, Mandell, Salim & Simowitz, P.A.

800 Corporate Drive, Suite 500

Fort Lauderdale, Florida 33334

STATEMENT OF THE ISSUES

The issues in this bid protest are whether Intervenor's bid

was nonresponsive because Intervenor, a corporation formed in

2005, lacks the required five years' experience in the tree

trimming business; and, if so, whether Re spondent's preliminary

decision to award Intervenor the contract at issue was clearly

erroneous, arbitrary or capricious, or contrary to competition.

PRELIMINARY STATEMENT

On August 10, 2006, Respondent Broward County School Board

issued an Invitation to Bid for the purpose of soliciting bids

on a contract for tree trimming and related services. Fourteen

bids were received and opened on September 13, 2006. On

September 27, 2006, Respondent announced its intent to award the

subject contract to Interveno r Innovative Environmental

Services, Inc. Petitioner Phil's Expert Tree Service, Inc., as

the second lowest bidder, was named "first alternate" awardee.

Petitioner filed a formal written protest of the intended

award on October 13, 2006, alleging that Int ervenor's bid should

be rejected as nonresponsive. The case was referred to the

Division of Administrative Hearings ("DOAH"), where the protest

petition was filed on November 9, 2006. One week later, on

November 16, 2006, Intervenor filed a Petition to I ntervene,

seeking to align itself with Respondent. Permission to

intervene was granted on November 17, 2006.

The final hearing took place on January 4, 2007, as

scheduled, with all parties present. At the outset of the

hearing, after entertaining argu ment, the undersigned partially

granted a motion in limine that Petitioner had brought in an

effort to prevent its opponents from offering evidence that

Petitioner's own bid was nonresponsive. It was determined that

such evidence would be allowable to sho w that Petitioner's bid

suffers from the "same deficiencies" alleged to plague

Intervenor's bid. Additionally, the undersigned granted

Intervenor's motion for leave to amend its petition, permitting

Intervenor to allege that Petitioner's bid was nonrespon sive.

The parties stipulated to a number of facts as set forth in

their Joint Pre - Hearing Stipulation. Joint Exhibits 1 - 25 were

admitted into evidence with the consent of all parties.

In its case, Petitioner elicited testimony from Deborah and

Craig Conwa y, the principals of Intervenor; as well as from

George Toman, Respondent's purchasing agent for the instant

procurement. In addition, Petitioner's Exhibits 1 - 9 were

received in evidence.

Intervenor called one witness: Brian Mulgrew, an arborist

associat ed with Petitioner. Intervenor also introduced

Intervenor's Exhibits 1 and 2, which were admitted.

The final hearing transcript was filed on January 24, 2007,

making the Proposed Recommended Orders due on February 13, 2007,

pursuant to the schedule establ ished at the conclusion of the

final hearing. Each party timely filed a Proposed Recommended

Order. All of the parties' post - hearing submissions were

carefully considered during the preparation of this Recommended

Order.

Unless otherwise indicated, cit ations to the Florida

Statutes refer to the 2006 Florida Statutes.

FINDINGS OF FACT

1. Pursuant to Invitation to Bid No. 27 - 054X (the "ITB"),

which was issued on August 10, 2006, Respondent Broward County

School Board ("School Board") solicited bids for "Tree Trimming,

Planting, Hurricane Cleanup, and Removal Service." Interested

vendors were instructed to bid prices on numerous items of

service. The items were sorted into two groups, Group A and

Group B. The School Board intended to designate a "prima ry

vendor" for each group, who in the ordinary course of events

would receive the largest volume of work, but it reserved the

right to procure services from the second and third lowest

bidders in each group should it become necessary or desirable to

do so. Bids were due on September 13, 2006.

2. Section 4 of the ITB contained "Special Conditions"

applicable to this procurement. Of interest in this case is

Special Condition No. 11, which specified the qualifications a

vendor needed to be considered for an award:

BIDDER'S QUALIFICATIONS: Bidder must have

at least five years experience in tree

trimming services within the Miami - Dade,

Broward and Palm Beach tri - county area.

Bidder must submit, with the bid or upon

request, the attached Bidder's Profile fo rm .

This report must include a minimum of three

references from commercial jobs. Each

reference should include the address of the

actual job, work accomplished and a phone

number and contact person.

(Emphasis in original.)

3. The Bidder Profile form to which Special Condition 11

referred was located in Section 7 of the ITB as Attachment 1.

At the top of the Bidder Profile appeared the following

direction and warning:

THIS INFORMATION MUST BE SUBMITTED WITH THE

BID. FAILURE TO COMPLETE THIS SECTION W ILL

DISQUALIFY THE SUBMITTED BID.

(Emphasis in original.) Paragraph 12 of the Bidder Profile form

stated as follows:

References Required. Contractor to provide

a list of three references. Three

references from jobs completed in each of

the past three y ears.

4. More than one dozen vendors timely submitted bids,

which the School Board opened on September 13, 2006. Among the

bidders were Petitioner Phil's Expert Tree Service, Inc.

("Expert") and Intervenor Innovative Environmental Services,

Inc. ("Inno vative"). After tabulating the bids, the School

Board determined that Innovative was the lowest and best bid

from a responsive, responsible bidder with regard to Group A,

followed by Expert and All County Tree & Landscape Co., Inc.

("All County"), in that order. Thus, when the award

recommendations were posted on September 27, 2006, Innovative

was named the intended primary awardee for Group A, Expert the

first alternate, and All County the second alternate. 1

5. Innovative is a family business whose principals are

Craig and Deborah Conway, husband and wife. In the year 2000,

the Conways moved to South Florida from Pennsylvania, where, for

more than 20 years, they had operated a tree trimming and land

clearing business. After arriving in Florida, the Conways

entered into a business arrangement with Donald Richter, a

certified arborist, whereby they jointly provided tree trimming

services under the name "ASAP Tree Service" or "Don Richter's

ASAP Tree Service."

6. In October 2002, the Conways formed a corporation

called Independent Equipment South, Inc. ("Independent").

Independent operated an equipment sales and rental business

whose inventory consisted of equipment that was not being used

in the family's tree trimming operations. Eventually, the

Co nways' tree trimming service become part of Independent's

business portfolio as well.

7. In February 2005, Innovative was incorporated. At all

times relevant to this procurement, Mrs. Conway has been the

sole corporate officer, Mr. Conway the company's Director of

Operations. In addition, at all relevant times, Innovative has

employed or otherwise retained Mr. Richter as its certified

arborist.

8. Although Innovative and Independent are separate

corporate entities, the two businesses operate out of the same

location, have the same employees, and use the same equipment.

The Conways commonly refer to their businesses as "IES," using

that acronym interchangeably to mean either Innovative or

Independent (or both).

9. Innovative's Bidder Profile, whi ch was submitted

together with its bid, referred to —— and incorporated —— an

attachment entitled, "Brief Company History." The Brief Company

History provided background information on Innovative's

provenance, albeit from a layperson's perspective. Written b y

nonlawyers, the summary was not always technically precise, from

a legal standpoint, in its descriptions of the various business

associations in which the Conways have been involved. Seizing

on the least artful phrases, Expert contends that some of the

statements in the Brief Company History were false and perhaps

even fraudulent. The undersigned, however, finds otherwise. To

the point, the Brief Company History reflects an honest attempt

truthfully to describe the Conways' family businesses, which is

reasonably accurate when read and understood from the

perspective of the small - business owners who prepared it.

10. That said, the undersigned finds and determines that

Innovative —— as distinct from its principals and/or personnel ——

did not have five years ' experience in the tree trimming

business when it bid on the contract at hand, notwithstanding

the wealth of tree trimming experience at its disposal. Indeed,

having been in existence for fewer than two years at the time it

submitted its bid, Innovative, as a separate legal entity, could

not possibly have garnered, in its own right, five years'

experience doing anything.

11. For the same reason, though Innovative provided plenty

of references, the ones that stemmed from jobs completed before

February 20 05 necessarily related to providers other than

Innovative, such as ASAP Tree Service, who actually existed

then. To be sure, the providers who earned the references from

earlier jobs upon which Innovative relied either were

predecessor business associatio ns or individuals who would

become personnel of Innovative —— but they were not Innovative.

Innovative simply could not have performed or completed any jobs

before its creation.

12. It is determined, therefore, as a matter of ultimate

fact, that Innovativ e's bid did not strictly conform to the

plain language of Special Condition No. 11.

13. Like Innovative, Expert is a family - owned business.

Founded in 1985 by Philip Simeone, Expert was incorporated in

1992. Though Expert clearly possesses the length o f experience

for which Special Condition No. 11 called, Expert failed in its

Bidder Profile to provide three references "from jobs completed

in each of the past three years," as instructed in paragraph 12

of the ITB's Section 7, Attachment 1. Instead, Exp ert gave two

references from jobs completed in 2006 plus another from a job

completed in 2004. Expert's bid did not contain a reference

from a job completed in 2005.

14. Expert contends that the School Board should have

rejected Innovative's bid as mate rially nonresponsive (for

lacking the requisite five years' experience) and awarded the

contract to Expert as the lowest responsive bidder. The School

Board and Innovative take the position that the School Board's

decision to treat Innovative's bid as res ponsive was not clearly

erroneous, arbitrary, or capricious.

15. Turning the tables, the School Board and Innovative

argue that Expert's own bid deviated from Special Condition No.

11, in that Expert failed to provide a reference from a job

completed i n 2005. 2 Yet both assert that "it was reasonable for

[the School Board] to waive the requirement of the Bidder

Profile form that one . . . reference[] be [from] a job

completed in the year 2005." Somewhat inconsistently, however,

Innovative argues furthe r that Expert's "bid proposal cannot be

sustained" —— evidently due to its material nonresponsiveness.

This apparent inconsistency follows from Innovative's attempt to

play down its alternative position, which is that if "a contrary

conclusion [had] been re ached as to [Innovative's] experience" ——

meaning that if the School Board had chosen not to waive any

irregularity concerning Innovative's length of corporate

experience —— then the "same analysis would apply to" Expert ——

meaning that Expert's bid too should h ave been disqualified.

16. Thus, even though Innovative maintains that the School

Board reasonably waived any irregularities in Expert's bid,

Innovative is unwilling to concede that the School Board did not

err in determining that Expert's bid was respon sive, evidently

out of concern that such an admission might compromise its

fallback position. Innovative's bottom line is that if

Innovative's bid were to be disqualified as materially

nonresponsive, then Expert's bid would need to be rejected,

too.

CON CLUSIONS OF LAW

17. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to Sections 120.569, 120.57(1), and

120.57(3), Florida Statutes, and the parties have standing.

18. Pursuant to Section 120.57(3)(f), Florida Statutes,

the burden of proof rests with the party opposing the proposed

agency action, here Expert. See State Contracting and

Engineering Corp. v. Department of Transp. , 709 So. 2d 607, 609

(Fla. 1st DCA 1998). Expert must sustain its burden of proof by

a preponderan ce of the evidence. Florida Dept. of Transp. v.

J.W.C. Co., Inc ., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

19. Section 120.57(3)(f), Florida Statutes, spells out the

rules of decision applicable in bid protests. In pertinent

part, the statute provides:

In a competitive - procurement protest, other

than a rejection of all bids, the

administrative law judge shall conduct a de

novo proceeding to determine whether the

agency's proposed action is contrary to the

agency's governing statutes, the agency's

rules or policies, or the bid or proposal

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious.

20. The First District Court of Appeal has construed the

term "de novo proceeding," as used in Section 120.57(3)(f),

Florida Statutes, to "describe a form of intra - agency review.

The judge may receive evidence, as with any formal hearing under

section 120.57(1), but the object of the proceedin g is to

evaluate the action taken by the agency." State Contracting ,

709 So. 2d at 609. In deciding State Contracting , the court

followed Intercontinental Properties, Inc. v. State Dept. of

Health and Rehabilitative Services , 606 So. 2d 380, 386 (Fla.

1s t DCA 1992), an earlier decision —— it actually predates the

present version of the bid protest statute —— in which the court

had reasoned:

Although the hearing before the hearing

officer was a de novo proceeding, that

simply means that there was an evidentiar y

hearing during which each party had a full

and fair opportunity to develop an

evidentiary record for administrative review

purposes. It does not mean, as the hearing

officer apparently thought, that the hearing

officer sits as a substitute for the

Depar tment and makes a determination whether

to award the bid de novo. Instead, the

hearing officer sits in a review capacity,

and must determine whether the bid review

criteria . . . have been satisfied.

21. In framing the ultimate issue to be decided in th is de

novo proceeding as being "whether the agency's proposed action

is contrary to the agency's governing statutes, the agency's

rules or policies, or the bid or proposal specifications," the

statute effectively establishes a standard of conduct for the

a gency, which is that, in soliciting and accepting bids or

proposals, the agency must obey its governing statutes, rules,

and the project specifications. If the agency breaches this

standard of conduct, its proposed action is subject to

(recommended) rever sal by the administrative law judge in a

protest proceeding.

22. Consequently, the party protesting the intended award

must identify and prove, by the greater weight of the evidence,

a specific instance or instances where the agency's conduct in

taking i ts proposed action was either: (a) contrary to the

agency's governing statutes; (b) contrary to the agency's rules

or policies; or (c) contrary to the bid or proposal

specifications.

23. It is not sufficient, however, for the protester to

prove merely t hat the agency violated the general standard of

conduct. By virtue of the applicable standards of "proof,"

which are best understood as standards of review, 3 the protester

additionally must establish that the agency's misstep was: (a)

clearly erroneous; (b) contrary to competition; or (c) an abuse

of discretion.

24. The three review standards mentioned in the preceding

paragraph are markedly different from one another. The abuse of

discretion standard, for example, is more deferential (or

narrower) tha n the clearly erroneous standard. The bid protest

review process thus necessarily entails a decision or decisions

regarding which of the several standards of review to use in

evaluating a particular action. To do this requires that the

meaning and applic ability of each standard be carefully

considered.

25. The clearly erroneous standard is generally applied in

reviewing a lower tribunal's findings of fact. In Anderson v.

City of Bessemer City, N.C. , 470 U.S. 564, 573 - 74 (1985), the

United States Suprem e Court expounded on the meaning of the

phrase "clearly erroneous," explaining:

Although the meaning of the phrase "clearly

erroneous" is not immediately apparent,

certain general principles governing the

exercise of the appellate court's power to

overturn findings of a [trial] court may be

derived from our cases. The foremost of

these principles . . . is that "[a] finding

is 'clearly erroneous' when although there

is evidence to support it, the reviewing

court on the entire evidence is left with

the defin ite and firm conviction that a

mistake has been committed ." . . . . This

standard plainly does not entitle a

reviewing court to reverse the finding of

the trier of fact simply because it is

convinced that it would have decided the

case differently. The reviewing court

oversteps the bounds of its duty . . . if it

undertakes to duplicate the role of the

lower court. "In applying the clearly

erroneous standard to the findings of a

[trial] court sitting without a jury,

appellate courts must constantly have in

mind that their function is not to decide

factual issues de novo. " . . . . If the

[trial] court's account of the evidence is

plausible in light of the record viewed in

its entirety, the court of appeals may not

reverse it even though convinced that h ad it

been sitting as the trier of fact, it would

have weighed the evidence differently.

Where there are two permissible views of the

evidence, the factfinder's choice between

them cannot be clearly erroneous. . . . .

(Citations omitted)(emphasis adde d).

26. The Florida Supreme Court has used somewhat different

language to give this standard essentially the same meaning:

A finding of fact by the trial court in a

non - jury case will not be set aside on

review unless there is no substantial

evidence to sustain it, unless it is clearly

against the weight of the evidence, or

unless it was induced by an erroneous view

of the law. A finding which rests on

conclusions drawn from undisputed evidence,

rather than on conflicts in the testimony,

does not carry with it the same

conclusiveness as a finding resting on

probative disputed facts, but is rather in

the nature of a legal conclusion. . . . .

When the appellate court is convinced that

an express or inferential finding of the

trial court is without suppor t of any

substantial evidence, is clearly against the

weight of the evidence or that the trial

court has misapplied the law to the

established facts, then the decision is

'clearly erroneous' and the appellate court

will reverse because the trial court has

'failed to give legal effect to the

evidence' in its entirety.

Holland v. Gross , 89 So. 2d 255, 258 (Fla. 1956)(citation

omitted).

27. Because administrative law judges are the triers of

fact charged with resolving disputed issues of material fact

bas ed upon the evidence presented at hearing, and because bid

protests are fundamentally de novo proceedings, the undersigned

is not required to defer to the letting authority in regard to

any findings of objective historical fact that might have been

made in the run - up to preliminary agency action. It is

exclusively the administrative law judge's job, as the trier of

fact, to ascertain from the competent, substantial evidence in

the record what actually happened in the past or what reality

presently exists, as if no findings previously had been made.

28. If, however, the challenged agency action involves an

ultimate factual determination —— for example, an agency's

conclusion that a proposal's departure from the project

specifications was a minor irregularit y as opposed to a material

deviation —— then some deference is in order, according to the

clearly erroneous standard of review. 4 To prevail on an

objection to an ultimate finding, therefore, the protester must

substantially undermine the factual predicate f or the agency’s

conclusion or convince the judge that a defect in the agency's

logic led it unequivocally to commit a mistake.

29. There is another species of agency action that also is

entitled to review under the clearly erroneous standard:

interpretat ions of statutes for whose administration the agency

is responsible, and interpretations of the agency's own rules.

See State Contracting and Engineering Corp. v. Department of

Transp. , 709 So. 2d 607, 610 (Fla. 1st DCA 1998). In deference

to the agency' s expertise, such interpretations will not be

overturned unless clearly erroneous. Id. 5

30. This means that if the protester objects to the

proposed agency action on the ground that it violates either a

governing statute within the agency's substantive jurisdiction

or the agency's own rule, and if, further, the validity of the

objection turns on the meaning, which is in dispute, of the

subject statute or rule, then the agency's interpretation should

be accorded deference; the challenged action should sta nd unless

the agency's interpretation is clearly erroneous (assuming the

agency acted in accordance therewith). 6

31. The statute requires that agency action (in violation

of the applicable standard of conduct) which is "arbitrary, or

capricious" be set as ide. Earlier, the phrase "arbitrary, or

capricious" was equated with the abuse of discretion standard,

see endnote 3, supra , because the concepts are practically

indistinguishable —— and because use of the term "discretion"

serves as a useful reminder regar ding the kind of agency action

reviewable under this highly deferential standard.

32. It has been observed that an arbitrary decision is one

that is not supported by facts or logic, or is despotic. Agrico

Chemical Co. v. State Dept. of Environmental Re gulation , 365 So.

2d 759, 763 (Fla. 1st DCA 1978), cert. denied , 376 So. 2d 74

(Fla. 1979). Thus, under the arbitrary or capricious standard,

"an agency is to be subjected only to the most rudimentary

command of rationality. The reviewing court is not au thorized

to examine whether the agency's empirical conclusions have

support in substantial evidence." Adam Smith Enterprises, Inc.

v. State Dept. of Environmental Regulation , 553 So. 2d 1260,

1273 (Fla. 1st DCA 1989). Nevertheless,

the reviewing court m ust consider whether

the agency: (1) has considered all relevant

factors; (2) has given actual, good faith

consideration to those factors; and (3) has

used reason rather than whim to progress

from consideration of each of these factors

to its final decisi on.

Id.

33. The second district framed the "arbitrary or

capricious" review standard in these terms: "If an

administrative decision is justifiable under any analysis that a

reasonable person would use to reach a decision of similar

importance, it would seem that the decision is neither arbitrary

nor capricious." Dravo Basic Materials Co., Inc. v. State Dept.

of Transp. , 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992). As the

court observed, this "is usually a fact - intensive

determination." Id. at 634.

34. Compare the foregoing "arbitrary or capricious"

analysis with the test for reviewing discretionary decisions:

"Discretion, in this sense, is abused when

the judicial action is arbitrary, fanciful,

or unreasonable, which is another way of

saying that di scretion is abused only where

no reasonable man would take the view

adopted by the trial court. If reasonable

men could differ as to the propriety of the

action taken by the trial court, then it

cannot be said that the trial court abused

its discretion."

Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla. 1980),

quoting Delno v. Market St. Ry. Co. , 124 F.2d 965, 967 (9th Cir.

1942). Further,

[t]he trial court's discretionary power is

subject only to the test of reasonableness,

but that test requires a d etermination of

whether there is logic and justification for

the result. The trial courts' discretionary

power was never intended to be exercised in

accordance with whim or caprice of the judge

nor in an inconsistent manner. Judges

dealing with cases ess entially alike should

reach the same result. Different results

reached from substantially the same facts

comport with neither logic nor

reasonableness.

Canakaris , 382 So. 2d at 1203

35. Whether the standard is called "arbitrary or

capricious" or "abuse of discretion," the scope of review, which

demands maximum deference, is the same. Clearly, then, the

narrow "arbitrary or capricious" standard of review cannot

properly be applied in evaluating all agency actions that might

be challenged in a bid protes t; rather, this highly deferential

standard appropriately applies only to those decisions which are

committed to the agency's discretion.

36. Therefore, where the protester objects to agency

action that entails the exercise of discretion, but only in su ch

instances, the objection cannot be sustained unless the agency

abused its discretion, i.e. acted arbitrarily or capriciously.

37. The third standard of review articulated in Section

120.57(3)(f) is unique to bid protests. The "contrary to

competitio n" test is a catch - all which applies to agency actions

that do not turn on the interpretation of a statue or rule, do

not involve the exercise of discretion, and do not depend upon

(or amount to) a determination of ultimate fact.

38. Although the contrary to competition standard, being

unique to bid protests, is less well defined than the other

review standards, the undersigned concludes that the set of

proscribed actions should include, at a minimum, those which:

(a) create the appearance of and opportun ity for favoritism; (b)

erode public confidence that contracts are awarded equitably and

economically; (c) cause the procurement process to be genuinely

unfair or unreasonably exclusive; or (d) are unethical,

dishonest, illegal, or fraudulent. See , e.g. , R. N. Expertise,

Inc. v. Miami - Dade County School Bd., et al. , Case No. 01 -

2663BID, 2002 Fla. Div. Adm. Hear. LEXIS 163 , *58

(Fla.Div.Admin.Hrgs. Feb. 4, 2002 ); see also E - Builder v. Miami -

Dade County School Bd. et al. , Case No. 03 - 1581BID, 2003 WL

2234798 9, *10 (Fla.Div.Admin.Hrgs. Oct. 10, 2003)

39. Turning to the merits of this case, Expert's protest

hinges on a single objection, namely that Innovative lacked the

requisite five years' experience in providing tree trimming

services. That being the case , asserts Expert, Innovative's bid

deviated materially from the provisions of Special Condition No.

11 and hence must be rejected as nonresponsive. 7 The School

Board and Innovative contend, primarily, that Innovative's bid

satisfied Special Condition No. 11 and, alternatively, that if

Innovative's bid deviated from the specifications concerning

qualifications, then the irregularity was minor and could be

waived.

40. The resolution of this issue of responsiveness turns

on the meaning of Special Condition No. 11. Because no one

timely protested the specifications, the School Board's

interpretation of this provision would stand unless clearly

erroneous, provided Special Condition No. 11 were ambiguous,

vague, or unreasonable. On the other hand, if the pro vision

were unambiguous and otherwise lawful, then the School Board's

interpretation would not be entitled to deference (for plain

language requires no interpretation); the question, in that

event, would be whether the School Board implemented the clear

an d unambiguous language of the ITB. If not, then the Board's

action would be clearly erroneous or contrary to competition.

See endnote 6.

41. The language at issue is this: "Bidder must have at

least five years experience in tree trimming services with in the

. . . tri - county area." The School Board and Innovative do not

contend that this sentence is ambiguous. Instead, they advance

two arguments that focus on other issues.

42. The first tackles the "contention" —— which is asserted

to be the basis o f Expert's protest —— that Innovative's bid

should be rejected "based on [Innovative's] date of Florida

incorporation." This argument is unpersuasive, however, because

it attacks a straw man. The gravamen of Expert's protest is not

merely (or even essentia lly) that Innovative was incorporated

less than five years before submitting its bid. Rather,

Expert's protest is based on the premise that Innovative lacks

five years' experience in the tree trimming business, which

happens in this case to be, according to Expert, unusually easy

to establish because, as a matter of undisputed fact, Innovative

came into being less than five years ago.

43. Logically, in order to have acquired five years'

experience in tree trimming, it is necessary for the person

whose ex perience is at issue (here the corporation known as

Innovative) to have been in existence for that length of time.

However, while being at least five years of age is a necessary

condition of meeting this experience requirement, it is

obviously not a suffi cient condition, because not everyone (or

every corporation) trims trees. Thus, a corporation formed 15

years ago could not, on that single fact, be found to satisfy

the experience requirement at issue, but neither, without more

information, could it defi nitively be deemed unqualified. On

the other hand, a corporation formed three years ago can be

deemed unqualified, based on that fact alone, unless Special

Condition No. 11 permits consideration of the experience of

others besides the corporate bidder, su ch as the bidder's

personnel.

44. In this instance, Expert asserts that, because

Innovative is less than five years old, Innovative cannot

satisfy a necessary condition of meeting the experience

requirement. Consequently, for Expert's purposes, the "vin tage

of [Innovative's] corporate filings" is relevant only insofar as

it establishes Innovative's age. Having negated a necessary

condition pertaining to Innovative's experience, as Expert

believes it has, Expert needed to go no further in pressing the

po int.

45. The other argument that the School Board and

Innovative make is more compelling. They explain that the

School Board, as a consumer of tree trimming services, is not

terribly curious about the age of the corporate bidder, but

rather is quite int erested in knowing about the skills and

experience levels of the bidder's personnel —— especially those of

the individuals who would actually be trimming trees for the

School Board if the bidder were awarded the contract.

46. This is a reasonable positio n, backed by considerable

common sense. It is undeniably true that, as a practical

matter, if a property owner hires a corporate tree trimmer, the

latter is only as experienced as the human beings who trim trees

on the owner's property at any given point in time, regardless

of how long the corporation has been in business. It follows,

therefore, that placing great weight on the experience of the

relevant personnel is a rational tactic in selecting a tree

trimmer.

47. But the question at hand is not whet her it is

reasonable or rational, where the corporate bidder's relevant

personnel are well qualified, for the School Board to overlook

the fact that the corporate bidder does not, itself, have five

years' tree trimming experience; the question, rather, is

whether doing so accords with either (a) the plain and

unambiguous language of Special Condition No. 11 or (b) a

reasonable interpretation of Special Condition No. 11, if the

provision be ambiguous.

48. In reviewing the specification in dispute, the

u ndersigned starts from the premise that the term "experience,"

as commonly used and understood, refers to a personal quality or

attribute, the knowledge and skill than one derives from

personally doing and seeing things. Thus, while two or more

persons ca n share a common experience, one person's experience

is not generally regarded as being imputable or transferable to

another. Each person, ultimately, owns his or her own unique

experience and cannot have another's.

49. At first blush, it might seem that this conception of

"experience" is inapplicable to corporations, which are, after

all, impersonal entities, incapable of acquiring skills and

knowledge, through experience, in the manner of human beings.

It might seem, then, that "experience," as a c orporate

attribute, should denote the collective experience of the

corporation's employees and agents, the human beings through

which the corporation acts.

50. The undersigned was initially tempted to follow this

line of reasoning. Upon reflection, howe ver, the undersigned

has become convinced that the idea that a corporation cannot

acquire experience in its own right is too abstract a

consideration to cloud the meaning of Special Condition No. 11.

The language at issue —— "Bidder must have at least five years

experience in tree trimming services" —— is neither difficult nor

unusual and thus must be understood and applied according to its

everyday meaning.

51. As used by ordinary persons in daily discourse, the

subject provision, in reference to a corporat e bidder, plainly

means that the corporation must have been in the tree trimming

business for at least five years. Evidently, the School Board

wanted to be assured, through the "experience" provision, that a

corporate bidder had "been around" for five yea rs or more,

trimming trees commercially. 8 This kind of corporate experience

is unique to the corporation and, generally speaking, is

nontransferable. 9

52. The undersigned thus concludes, as a matter of law,

that the "experience" provision of Special Con dition No. 11 is

not ambiguous. 10 Consequently, the language does not need to be

interpreted; it can be applied to the circumstances at hand as a

fact - finding function. 11

53. Moreover, in the alternative, when the construction

that the School Board and In novative would place on the

"experience" provision —— which interpretation is left unstated in

their papers but is implicit in their argument —— is brought

forward for scrutiny, it becomes practically untenable. As the

School Board and Innovative read the lan guage, it means either:

Bidder , or its principals and/or personnel,

must have at least five years experience in

tree trimming services[.]

Or,

Bidder must have at its disposal individuals

having at least five years experience in

tree trimming services[.]

As the foregoing, italicized additions to the actual language

demonstrate, the School Board and Innovative effectively would

re - write the "experience" provision, changing its plain and

unambiguous meaning. This is not a proper method of

construction, an d it would put an unreasonable gloss on the

applicable language.

54. Accordingly, even if the "experience" provision were

ambiguous, which it is not, the School Board's interpretation

thereof would be clearly erroneous.

55. For the above reasons, the u ndersigned has determined,

as a matter of ultimate fact, that Innovative's bid was not

responsive to the plain language of Special Condition No. 11, in

consequence of the bidder's want of five years' experience in

the tree trimming business. 12

56. It remai ns to be determined whether the School Board's

intended award might be upheld on the theory that the

irregularity in Innovative's bid was a minor one that the School

Board could waive. Because the School Board found Innovative's

bid to be responsive, howe ver, the intended award was not based

on a finding that Innovative's lack of five years' experience

constituted a minor deviation, which means that there exists no

ultimate factual determination in this regard to review for

clear error. 13 As a result, the question whether Innovative's

lack of experience is a minor deficiency must be decided de

novo .

57. It has long been recognized that "although a bid

containing a material variance is unacceptable, not every

deviation from the invitation to bid is materia l. [A deviation]

is material if it gives the bidder a substantial advantage over

the other bidders and thereby restricts or stifles competition."

Tropabest Foods, Inc. v. State Department of General Services ,

493 So. 2d 50, 52 (Fla. 1st DCA 1986). "The test for measuring

whether a deviation in a bid is sufficiently material to destroy

its competitive character is whether the variation affects the

amount of the bid by giving the bidder an advantage or benefit

not enjoyed by other bidders." Harry Pepper & Associates, Inc.

v. City of Cape Coral , 352 So. 2d 1190, 1193 (Fla. 2d DCA 1977).

58. In addition to the foregoing rules, courts have

considered the following criteria in determining whether a

variance is material and hence nonwaivable:

[F]irst, wheth er the effect of a waiver

would be to deprive the municipality of its

assurance that the contract will be entered

into, performed and guaranteed according to

its specified requirements, and second,

whether it is of such a nature that its

waiver would adver sely affect competitive

bidding by placing a bidder in a position of

advantage over other bidders or by otherwise

undermining the necessary common standard of

competition.

[S]ometimes it is said that a bid may be

rejected or disregarded if there is a

mat erial variance between the bid and the

advertisement. A minor variance, however,

will not invalidate the bid. In this

context a variance is material if it gives

the bidder a substantial advantage over the

other bidders, and thereby restricts or

stifles c ompetition.

Robinson Electrical Co. v. Dade County , 417 So. 2d 1032, 1034

(Fla. 3d DCA 1982), quoting 10 McQuillan, Municipal Corporations

§ 29.65 (3d ed. rev. 1981)(footnotes omitted).

59. The touchstone of these tests for materiality ——

substantial adva ntage —— is an elusive concept, to say the least,

easier to state than to apply. Obviously, waiving any defect

that might disqualify an otherwise winning bid gives the

beneficiary of the waiver an advantage or benefit over the other

bidders. In practice, d ifferentiating between, on the one hand,

"fair" advantages —— i.e. those that are tolerable because they do

not defeat the object and integrity of the competitive

procurement process —— and "unfair" (or intolerable) advantages,

on the other, is exceptionally d ifficult; and, making matters

worse, there are not (as far as the undersigned is aware) many

generally recognized, consistently applied, neutral principles

available for the decision - maker's use in drawing the

distinction between a "substantial" advantage and a "mere"

advantage.

60. That said, the undersigned believes that a bidder's

noncompliance with a specification which was designed to winnow

the field —— especially one which prescribes particular

characteristics that the successful bidder must possess —— should

rarely, if ever, be waived as immaterial. This is because such

a provision acts as a barrier to access into the competition,

potentially discouraging some would - be participants, namely

those who lack a required characteristic, from submitting a bid .

See Syslogic Technology Services, Inc. v. South Florida Water

Management District , Case No. 01 - 4385BID , 2002 Fla. Div. Adm.

Hear. LEXIS 235, *77 n.23 (Fla.Div.Admin.Hrgs. Jan. 18,

2002)("Of course, it will usually not be known how many, if any,

potentia l proposers were dissuaded from submitting a proposal

because of one project specification or another. That is why

specifications that have the capacity to act as a barrier to

access into the competition . . . should generally be considered

material and n on - waivable[.]"); Cf. City of Opa - Locka v.

Trustees of the Plumbing Industry Promotion Fund , 193 So. 2d 29,

32 (Fla. 3d DCA 1966)(Permitting city to waive necessity that

bidder have a certificate of competency prior to bidding would

give that bidder "an un fair advantage over those who must

prequalify. . . . [I]t would [also promote] favoritism by

allowing some bidders to qualify after their bids are accepted

while refusing to consider bids of others on the ground that

they did not prequalify.").

61. The "experience" specification of Special Condition

No. 11 prescribes an attribute that the successful bidder must

possess: five years' experience as a tree trimmer. The obvious

intent of this provision was to weed out unwanted potential

bidders, i.e. those having less than the requisite experience,

who —— according to the specification —— would not be qualified to

perform the contract at stake. The "experience" provision

clearly was intended as a barrier to entry into the competition

and could have prevented so me interested providers from

submitting bids.

62. To waive this requirement for Innovative, therefore,

would lower the bar retrospectively for the low bidder, giving

the appearance, at least, of the sort of preferential treatment

that would compromise the integrity of the competitive process.

See City of Opa - Locka , 193 So. 2d at 32; Apcoa, Inc. v. City of

New Haven , 1995 Conn. Super. LEXIS 958, *12 - *13 (Conn. Super.

Ct. Mar. 30, 1995) . Further, allowing Innovative to compete

would give this bidder a subs tantial advantage over the others,

not only for the obvious reason (being permitted to remain in

the contest, despite a flawed bid, is a benefit), but also for

the less obvious reason that being the "least qualified" (or

sole "unqualified" 14 ) bidder is a pl us, for the reasons that

follow.

63. As is commonly known, in most occupations salary is

commensurate with experience; more experienced workers command

higher wages than less experienced ones. In theory, then, less

experienced bidders, being constraine d by market forces to

accept lower pay than their more experienced rivals, should be,

in the main, more competitive as to cost. The upshot is that,

all other things being equal, the least experienced bidder is

well - positioned to be the lowest bidder. Wai ving a standard

that specifies a minimum experience level, therefore, has the

potential to affect the amount of the bid, albeit at the risk of

compromising on quality.

64. Consequently, Innovative's lack of five years'

experience in the tree trimming business was a material defect

that the School Board cannot. The School Board's decision to

accept Innovative's materially nonresponsive bid cannot be

upheld on the ground that the deviation was waivable.

65. The question remains whether Expert's bid also should

be rejected, for suffering the same deficiency as Innovative's.

See Intercontinental Properties, Inc. v. Department of Health

and Rehabilitative Services , 606 So. 2d 380, 384 (Fla. 3d DCA

1992)(The "party protesting an award to the low bidder must be

prepared to show not only that the low bid was deficient, but

must also show that the protestor's own bid does not suffer from

the same deficiency. To rule otherwise is to require the State

to spend more money for a higher bid which suffers from t he same

deficiency as the lower bid.").

66. As found, Expert failed to submit a reference from a

job completed in 2005, which was a requirement under Special

Condition No. 11, as implemented through Section 7, Attachment

1 —— the Bidder Profile. To repeat the relevant specification,

each bidder was directed to provide "[t]hree references from

jobs completed in each of the past three years." Providing two

references from jobs completed in 2006 and one from a job done

in 2004, Expert's bid deviated from the plain language of this

specification. 15 Although this deviation is not identical to the

one that makes Innovative's bid nonresponsive, it reflects a

nonconformance to the same special condition respecting

qualifications and hence, the undersigned conclude s, is

sufficiently similar to the defect in Innovative's bid to be

considered the "same deficiency" for purposes of applying the

rule laid down in Intercontinental Properties .

67. There is no persuasive direct evidence in the record

that the School Board waived this irregularity in Expert's bid.

Given that it was such a patent defect, however, the undersigned

infers that this is what must have happened. Because the School

Board determined, for some reason, that Expert's failure to

provide a reference fr om a job completed in 2005 was not a

material deviation from the "references" specification, the

undersigned will accord that determination some deference and

apply the clearly erroneous standard of review in deciding

whether it should stand.

68. One imm ediate problem the undersigned confronts in

reviewing the School Board's determination, however, is that

there is no persuasive direct evidence in the record from which

the grounds for the determination might be ascertained. The

undersigned knows what the School Board did (waive a deficiency

deemed immaterial) but not why this was done.

69. Having no evidence upon which to rely, the undersigned

speculates that the School Board inferred, from the fact that

Expert had produced three references (one from a 2004 job and

two from jobs done in 2006), that Expert must have finished a

reference - worthy job in 2005, and thus could have produced a

positive reference from that year, but failed to do so for some

unknown, yet benign, reason. If that were the School Bo ard's

rationale, however, then the undersigned is firmly convinced

that the School Board committed a fundamental mistake in

reasoning.

70. The reasonable inference that follows from the absence

of a reference from 2005 is that, more likely than not, no

r eference from 2005 was available. That references from 2004

and 2006 were provided makes the missing reference somewhat

analogous to a nonexistent entry in the records of a regularly

conducted activity; the availability of the other references

actually st rengthens, rather than weakens, the inference of

nonexistence. Other explanations for the absence of a 2005

reference are imaginable, of course, but to infer the existence

of such a reference, where in fact none was provided, strikes

the undersigned unrea sonable, even speculative.

71. Moreover, the "references" specification —— like the

"experience" provision examined above in connection with

Innovative's bid —— is a "gatekeeper" requirement that weeds out

unwanted potential bidders. Indeed, it works hand - in - glove with

the "experience" provision in prescribing minimum

qualifications. Whereas the "experience" provision prescribes a

quantitative measure of a bidder's qualifications (specifying

how long a bidder must have been in the business) , the

"reference s" specification prescribes a qualitative measure of

ability (demanding consistency of satisfactory performance, as

evidenced by references from jobs completed in several

sequential years). At bottom, therefore, the "references"

specification, which was d esigned to winnow the field of

competitors, is the type of specification that should rarely, if

ever, be waived as immaterial.

72. It is concluded that waiving the "references"

requirement for Expert would give Expert a substantial advantage

over the oth er bidders, who needed to produce one reference from

jobs performed in each of three years, for the same reasons that

waiving the "experience" provision for Innovative would give

Innovative an anticompetitive assist. Consequently, Expert's

failure to prov ide a reference from a job completed in 2005 was

a material, nonwaivable defect. The School Board's decision to

waive this material irregularity was clearly erroneous and

contrary to competition.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a Final Order

that (a) declares Innovative's bid to be materially

nonresponsive and, accordingly, rescinds the proposed award to

Innovative; and (b) declares Expert's bid to be materially

no nresponsive and, accordingly, rejects the same. Because the

choice of remedies for invalid procurement actions is ultimately

within the agency's discretion, the undersigned declines to make

a recommendation as to whether the School Board should award the

contract to All County (which was the putative "second

alternate") or reject all bids and start over.

DONE AND ENTERED this 19th day of March, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Admin istrative Law Judge

Division of Administrative Hearings

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed w ith the Clerk of the

Division of Administrative Hearings

this 19th day of March, 2007.

ENDNOTES

1 / Innovative placed third in t he competition for the Group B

contract and accordingly was named second alternate therefor;

Expert ended up out of the running for the Group B business.

2 / They also point out a couple of additional, minor

deficiencies in Expert's bid that arguably cons titute deviations

from the specifications. For example, Expert completed and

submitted the necessary form for disclosing potential conflicts

of interest, but neglected to sign the paper. Suffice it to say

that these "technicalities" (as the School Board and Innovative

call them) cannot fairly be considered material deviations. In

short, the undersigned agrees with the School Board and

Innovative that these technicalities, even if deviations, were

waivable ones.

3 / The term "standard of proof" as used i n § 120.57(3)(f)

reasonably may be interpreted to reference standards of review .

This is because, while the "standard of proof" sentence fails to

mention any common standards of proof, it does articulate two

accepted standards of review: (1) the "clearly erroneous"

standard and (2) the abuse of discretion (="arbitrary, or

capricious") standard. (The "contrary to competition"

standard —— whether it be a standard of proof or standard of

review —— is unique to bid protests.)

4 / An ultimate factual determin ation is a conclusion derived by

reasoning from objective facts; it frequently involves the

application of a legal principle or rule to historical facts:

e.g. the driver failed to use reasonable care under the

circumstances and therefore was negligent; an d it may be infused

with policy considerations. Reaching an ultimate factual

finding requires that judgment calls be made which are unlike

those that attend the pure fact finding functions of weighing

evidence and choosing between conflicting but permissi ble views

of reality.

5 / From the general principle of deference follows the more

specific rule that an agency's interpretation need not be the

sole possible interpretation or even the most desirable one; it

need only be within the range of permissible i nterpretations.

State Bd. of Optometry v. Florida Soc. of Ophthalmology , 538 So.

2d 878, 885 (Fla. 1st DCA 1988); see also Suddath Van Lines,

Inc. v. State Dept. of Environmental Protection , 668 So. 2d 209,

212 (Fla. 1st DCA 1996). However, "[t]he deferen ce granted an

agency's interpretation is not absolute." Department of Natural

Resources v. Wingfield Development Co. , 581 So. 2d 193, 197

(Fla. 1st DCA 1991). Obviously, an agency cannot implement any

conceivable construction of a statute or rule no matt er how

strained, stilted, or fanciful it might be. Id. Rather, "only

a permissible construction" will be upheld by the courts.

Florida Soc. of Ophthalmology , 538 So. 2d at 885. Accordingly,

"[w]hen the agency's construction clearly contradicts the

unam biguous language of the rule, the construction is clearly

erroneous and cannot stand." Woodley v. Department of Health

and Rehabilitative Services , 505 So. 2d 676, 678 (Fla. 1st DCA

1987); see also Legal Environmental Assistance Foundation v.

Board of Cou nty Com'rs of Brevard County , 642 So. 2d 1081, 1083 -

84 (Fla. 1994)("unreasonable interpretation" will not be

sustained).

6 / The same standard of review also applies, in a protest

following the announcement of an intended award, with regard to

preliminary agency action taken upon the agency's interpretation

of the project specifications —— but perhaps for a reason other

than deference to agency expertise. Section 120.57(3)(b),

Florida Statutes, provides a remedy for badly written or

ambiguous specifications : they may be protested within 72 hours

after the posting of the specifications. The failure to avail

oneself of this remedy effects a waiver of the right to complain

about the specifications per se. Consequently, if the dispute

in a protest challenging a proposed award turns on the

interpretation of an ambiguous, vague, or unreasonable

specification, which could have been corrected or clarified

prior to acceptance of the bids or proposals had a timely

specifications protest been brought, and if the agen cy has acted

thereafter in accordance with a permissible interpretation of

the specification ( i.e. one that is not clearly erroneous), then

the agency's intended action should be upheld —— not necessarily

out of deference to agency expertise, but as a result of the

protester's waiver of the right to seek relief based on a faulty

specification. If, however, the agency has acted contrary to

the plain language of a lawful specification, then its action

should probably be corrected, for in that event the prelimi nary

agency action likely would be clearly erroneous or contrary to

competition; in that situation, there should be no waiver,

because a reasonable person would not protest an unambiguous

specification that facially conforms to Florida procurement law.

7 / The School Board is required by rule to "accept the lowest

and best bid from a responsive and responsible bidder." Fla.

Admin. Code R. 6A - 1.012(6)(emphasis added). Therefore, the

School Board would violate the general standard of conduct

(agencies must obey governing laws in letting contracts) if it

were to award the contract to a bidder whose bid was materially

nonresponsive.

8 / This is a rational consideration. Companies that have been

in business for a number of years have histories and records of

performance that can be examined, develop reputations, perhaps

establish identifiable traditions; indeed, simply having

survived in the competitive marketplace for many years can be

counted as a favorable mark. It is therefore reasonable for a

consumer t o desire to do business with an established company,

whose present employees, he hopes, will perform in a manner

consistent with those that have gone before them.

9 / This case does not involve a situation where a corporation of

many years' experience mer ely changes its name. The undersigned

assumes, without deciding, that a corporation, by any other

name, would retain its experience. Nor does this case present

the question —— admittedly a close one —— whether a division that is

"spun off" from an establishe d corporation could lay claim to

experience acquired while part of the parent corporation. (An

affirmative answer would not help Innovative because the

companion corporation which pre - dated Innovative, namely

Independent, did not come into being until Oct ober 2002, less

than five years before the bidding.) Nor is it necessary to

consider, in this case, how any number of corporate

transactions, such as mergers and acquisitions, might affect the

determination of a corporation's experience under Special

Cond ition No. 11. It is sufficient, for present purposes, to

speak in general terms, for the facts here are straightforward.

10 / Whether an ambiguity exists in the language of a legal

instrument is a question of law. E.g. Torwest, Inc. v.

Killilea , 942 So. 2d 1019, 1020 (Fla. 4th DCA 2006).

11 / See , e.g. , Pottsburg Utilities, Inc. v. Daugharty , 309 So.

2d 199, 202 (Fla. 1st DCA 1975)("Where a contract is plain and

unambiguous, there is no room for, and the court may not resort

to, construction or interpreta tion, but must apply the contract

as it is written.").

12 / The undersigned was unable to locate any cases on point,

either from jurisdictions in Florida or elsewhere. A few cases

have been found, however, which, though distinguishable for one

reason or another and lacking precedential value, reinforce the

undersigned's determination that Innovative's bid was materially

nonresponsive. The most recent of these is Zinn Constr., Inc.

v. The School District of Philadelphia , 2000 Phila. Ct. Com. Pl.

LEXIS 93, *1 (Pa. C.P. July 10, 2000), in which the court held

that a school district properly rejected the bid of a

corporation that had been in business for only one year, where

the specifications required the successful bidder to have a

minimum of five years' ex perience in installing boilers and

control systems. The court declined to construe the

specifications as allowing the experience requirement to be met

through the personnel of the corporation. Id. at *3.

In P & C Giampilis Constr. Corp. v. Diamond , 619 N.Y.S.2d

271, 273 (N.Y. App. Div. 1994), it was held that the letting

authority had a rational basis for rejecting, as nonresponsive,

the bid of a corporation that had not, within the previous five

years, successfully completed two roofing projects, as th e

specifications required. The court disagreed with the argument

that the experience of corporate personnel must be considered in

determining whether a corporate bidder meets such an experience

requirement, explaining:

[No authority has been offered] for the

proposition that [the letting authority]

should be required to pierce the corporate

veil, as a matter of course, when reviewing

bids for responsiveness to determine whether

the experience of shareholders, officers and

key employees of a companion corp oration

satisfies the experience requirements of the

bidder corporation as set forth in the

bidding documents. Under most ordinary

circumstances, as in the proceedings herein,

the independent existence of a corporation

cannot be ignored.

Id. (emphasis in original).

In Apcoa, Inc. v. City of New Haven , 1995 Conn. Super.

LEXIS 958 (Conn. Super. Ct. Mar. 30, 1995), the low bidder and

intended recipient of a contract for operating and managing

public parking facilities was a corporation that had come into

e xistence two years and seven months before the invitation for

bids. Id. at *10. The specifications, however, required

bidders to have been operating parking facilities for the last

three consecutive years. The letting authority determined that

the corpo ration met the three - year experience requirement

because 2.6 years' experience came within the "spirit" of the

requirement, and further because the corporation's principals

possessed extensive relevant experience. Id. at *11.

The court enjoined the lett ing authority from awarding the

contract as intended. It wrote:

The court cannot escape the conclusion

that . . . the contract [was to be awarded]

either in the belief that two years and

seven months experience was sufficient or in

the belief that the e xperience of the

principals of the corporation could be

included to satisfy the specification.

It is the holding of the court that

either belief would defeat the very object

and integrity of the competitive bidding

process. . . . [I]n the instant case, the

court does not question that the

specification could have provided that the

bidder and its principals must have certain

experience. The court does not question

that if [the intended awardee] had inquired

concerning the specification, the

specificatio n could have been amended, and

the amendment communicated to all bidders,

to allow for the experience of principals.

It is a consistent policy of advertised

procurement that all bidders must be bidding

on the same specification. . . . [T]his

court is co ncerned about what bids might

have been submitted if the specification had

indicated that the bidder could include the

experience of principals, officers, and

perhaps employees in determining compliance

with the bid specification.

Id. at *12 - *13.

13 / Whe n an agency asserts for the first time as a party

litigant in a bid protest that an irregularity was immaterial,

the contention must be treated, not with deference as a

presumptively neutral finding of ultimate fact, but with fair

impartiality as a legal a rgument; in other words, the agency is

entitled to nothing more or less than to be heard on an equal

footing with the protester.

14 / The undersigned understands that, by most reasonable

measures, Innovative is no less qualified to perform the tree

trimmi ng services in question than Expert or the other bidders.

Unfortunately for Innovative (and the School Board), however,

Innovative is "unqualified" pursuant to the only measure that

matters here: Special Condition No. 11. The other bidders,

having been held to the standard of Special Condition No. 11,

are "more qualified" than Innovative because they measured up to

that standard, whereas Innovative did not. Thus, it is correct

to say that waiving the "experience" requirement for Innovative

would make In novative the least experienced —— indeed, the only

"unqualified" —— bidder in the competition.

15 / Actually, the "references" requirement is not a model of

clarity. It could be understood as requiring three references

from each job meriting a reference, with at least one such job

having been completed in each of the past three years —— for a

total of at least nine references. When all of the language

relating to references is considered, however, it is clear that

just three references were needed. Additionall y, confusion

could have arisen as to whether the pertinent "past three years"

were 2006, 2005, and 2004 (counting the then - current year, 2006,

as a "past" year) —— or 2005, 2004, and 2003. In the event,

however, everyone seems to have understood "past three years" to

mean 2004 through 2006, and, more important, any ambiguity in

this regard is irrelevant to the instant dispute.

COPIES FURNISHED :

Robert Franklin, Esquire

Robert S. Franklin, P.A.

515 North Flagler Drive, Suite 801

West Palm Beach, Florida 33401

William G. Salim, Jr ., Esquire

Moskowitz, Mandell, Salim & Simowitz, P.A.

800 Corporate Drive, Suite 500

Fort Lauderdale, Florida 33334

Robert Paul Vignola, Esquire

School Board of Broward County

K. C. Wright Administrative Building

600 Southeast Third Avenue, 11th Floor

Fo rt Lauderdale, Florida 33301

Dr. Franklin L. Till, Jr., Superintendent

School Board of Broward County

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3125

Jeanine Bloomberg

Commissioner of Education

Turlington Building, Suite 1514

325 West Ga ines Street

Tallahassee, Florida 32399 - 0400

Deborah K . Kearney, General Counsel

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written ex ceptions within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.